HOLLADAY & CHILTON

A Professional Limited Liability Company

ATTORNEYS & COUNSELORS AT LAW
204 N. ROBINSON, SUITE 1550
OKLAHOMA CITY, OKLAHOMA 73102
TELEPHONE: (405) 236-2343
FACSIMILE: (405) 236-2349


May 2, 2014

Via Electronic Filing
Elisabeth A. Shumaker
Clerk of the Court
U.S. Court of Appeals for the Tenth Circuit
Byron White U.S. Courthouse
1823 Stout Street
Denver, CO 80257

Re: Bishop v. Smith, Nos. 14-5003, 14-5006
Response to Citation of Supplemental Authority

Dear Ms. Shumaker:

Plaintiffs-Appellees respectfully submit this response to Defendant-
Appellants letter citing to Schuette v. Coalition to Defend Affirmative Action, No.
12-682, 2014 WL 1577512 (U.S. April 22, 2014).

Defendants reliance on Schuette for the proposition (in Defendants words)
that the People should be free to decide difficult policy questions through the
political process misses the big picture in two critical respects.

First, Schuette upheld a state constitutional amendment that, in the context of
admissions to public universities, barred the use of a suspect classification (namely,
race). Justice Kennedys plurality opinion left undisturbedindeed, underscored
the settled rule that state policies based on suspect classifications trigger heightened
scrutiny. Id. at *16 ([S]earching judicial review . . . is necessary to guard against
invidious discrimination (alteration and ellipsis original; quotations omitted)). The
Oklahoma Marriage Ban, of course, is based on a suspect classification (namely,
gender), and therefore continues to warrant searching judicial review. See Aplee.
Appellate Case: 14-5003 Document: 01019243709 Date Filed: 05/02/2014 Page: 1
Docket Reference Number: [10172511]
2 | P a g e

Principal Br. at 41-43; Aplee. Reply Br. at 6. Were Oklahoma to reverse course and
bar the use of gender in defining and recognizing marriages, then Schuette would be
apposite.

Second, as with Windsor, Defendant misreads Schuette as a license for states
to decide policy questions without any apparent constraint. But Justice Kennedys
plurality opinion in Schuette, like his majority opinion in Windsor, confirmed rather
than cast aside the essential premise of our constitutional system that the
individual not be injured by the unlawful exercise of governmental power. Schuette
at *15; see United States v. Windsor, 133 S. Ct. 2675, 2691 (2013) (State laws
defining and regulating marriage, of course, must respect the constitutional rights of
persons).

For these reasons, and those in Plaintiffs-Appellees briefs, the Oklahoma
Marriage ban can neither avoid nor pass constitutional scrutiny.

Respectfully submitted,

s/ Don G. Holladay
Don G. Holladay, OBA No. 4294
James E. Warner III, OBA No. 19593
HOLLADAY & CHILTON PLLC
204 N. Robinson Ave., Suite 1550
Oklahoma City, OK 73102
(405) 236-2343 Telephone
(405) 236-2349 Facsimile
dholladay@holladaychilton.com
jwarner@holladaychilton.com

-and-

Joseph T. Thai, OBA No. 19377
300 Timberdell Rd.
Norman, OK 73019
(405) 204-9579 Telephone
thai@post.harvard.edu

ATTORNEYS FOR APPELLEES AND CROSS-
APPELLANTS MARY BISHOP, SHARON
BALDWIN, SUSAN BARTON AND GAY PHILLIPS
Appellate Case: 14-5003 Document: 01019243709 Date Filed: 05/02/2014 Page: 2